Thursday

28th Sep 2023

Opinion

Rule of law: it's time the EU Council said 'yes'

  • Financial penalties are likely to be the only way to ensure wayward governments change their behaviour (Photo: Michael Coghlan)

Attacks on the rule of law by national governments have been spreading like a virus across Europe and the EU appears to be powerless to contain it.

Hungary, Poland and Romania have each taken steps to undermine freedom of the media and independence of the judiciary.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

To have these countries turn away from the EU's foundational values of rule of law, democracy and respect for fundamental rights is an existential crisis for Europe.

In theory, the EU treaties supply a response mechanism: Article 7 of the Treaty on European Union.

Article 7 empowers the EU to determine that there is a clear risk of a serious breach of the rule of law in a member state, and ultimately impose sanctions on the member state at issue, for example the suspension of voting rights in the Council.

But this requires unanimity amongst member states, and with the virus now in three countries, that looks impossible to achieve.

Article 7 has now been triggered with Poland and Hungary, but little to no progress has been made in either case.

The Commission – and the EU Parliament – have been trying to find alternative ways forward, but their attempts are being continually thwarted by the council.

Start working together

Unless the three arms of the EU start to work together, the virus risks spreading further.

Last month, the European commission published a communication on Further Strengthening the Rule of Law within the Union.

The communication requests input on what the EU can do to build a common rule of law culture in the EU, strengthen the rule of law at the national level and offer better enforcement when rule of law problems in member states aren't being sufficiently addressed at the national level.

This isn't the first time the commission has attempted to address this dire situation.

In May of last year, it proposed a law that would make the grant of EU funding to member states conditional on the state of the rule of law at the national level.

The idea is that respect for the rule of law ensures that EU spending in the member states, and ultimately, the EU budget itself, is sufficiently protected from misuse or corruption.

The response of the Council's Legal Service (CLS) was no, no and no.

First, it felt that the proposed regulation was incompatible with Article 7, which serves, according to the CLS, as the sole method for addressing rule of law problems in the member states.

Second, it felt that the stated legal basis for the proposal – Article 322 of the Treaty of Lisbon which permits the EU to adopt laws concerning financial rules – was improper because the proposal failed to firmly establish a link between rule of law deficiencies and sound financial management.

Finally, the CLS objected on two very technical issues in relation to the process for adopting measures under the proposed mechanism.

Make no mistake – the proposal has its problems, and the CLS correctly identified some of them.

For example, the proposal doesn't adequately define what is meant by 'generalised rule of law deficiencies'.

Beyond that, it doesn't give enough thought to how the suspension or termination of funds might more directly harm some people and organisations that were the ultimate target of the funds and what measures might have to be put in place to ensure that deserving parties still receive financial support.

But that doesn't mean the whole idea should be rejected.

In fact, financial penalties are likely to be the only way to ensure wayward governments change their behaviour.

Council is roadblock

This roadblock seems to be more evidence that the council is not serious about meaningfully confronting rule of law backsliding.

As well as deeming a 'soft' Rule of Law Framework developed by the commission in 2014 as unlawful, its main move has been to establish an essentially secret annual rule of law dialogue for which no input is solicited from stakeholders and from which no papers or conclusions are published.

This is not the behaviour of an organisation committed to promoting the rule of law.

Contrast this to the European parliament, which has passed resolutions condemning actions in Hungary and Poland, and which offered meaningful amendments to the commission's proposal in January of this year that partially address the CLS's concerns.

Nevertheless, the proposal on financial penalties seems to be on hold.

Whether the commission will continue to work on it is likely to depend on the outcome of the rule of law consultation launched with the communication.

The commission has asked for responses from all interested stakeholders, including the EU institutions themselves.

Presumably the council will have something to say – hopefully this time it will be 'yes'.

Author bio

Justine N Stefanelli is a senior research fellow at the Bingham Centre for the Rule of Law in London.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

EU commission plans bolstering rule of law toolbox

As EU concerns over rule of law in some member states grow, the commission opens a debate on tools to discipline unruly member states. The EU executive has launched a new probe against Poland, and put Romania on the spot.

Investigation

The dark side of 'egg' building: workers without papers

An investigation of the Belgian newspaper De Standaard reveals that the Europa Building, where EU summits take place, was partly built by undocumented migrants and workers without proper contracts.

How do you make embarrassing EU documents 'disappear'?

The EU Commission's new magic formula for avoiding scrutiny is simple. You declare the documents in question to be "short-lived correspondence for a preliminary exchange of views" and thus exempt them from being logged in the official inventory.

Column

Will Poles vote for the end of democracy?

International media must make clear that these are not fair, democratic elections. The flawed race should be the story at least as much as the race itself.

Column

Will Poles vote for the end of democracy?

International media must make clear that these are not fair, democratic elections. The flawed race should be the story at least as much as the race itself.

Latest News

  1. Germany tightens police checks on Czech and Polish border
  2. EU Ombudsman warns of 'new normal' of crisis decision-making
  3. How do you make embarrassing EU documents 'disappear'?
  4. Resurgent Fico hopes for Slovak comeback at Saturday's election
  5. EU and US urge Azerbijan to allow aid access to Armenians
  6. EU warns of Russian 'mass manipulation' as elections loom
  7. Blocking minority of EU states risks derailing asylum overhaul
  8. Will Poles vote for the end of democracy?

Stakeholders' Highlights

  1. International Medical Devices Regulators Forum (IMDRF)Join regulators, industry & healthcare experts at the 24th IMDRF session, September 25-26, Berlin. Register by 20 Sept to join in person or online.
  2. UNOPSUNOPS begins works under EU-funded project to repair schools in Ukraine
  3. Georgia Ministry of Foreign AffairsGeorgia effectively prevents sanctions evasion against Russia – confirm EU, UK, USA
  4. International Medical Devices Regulators Forum (IMDRF)Join regulators & industry experts at the 24th IMDRF session- Berlin September 25-26. Register early for discounted hotel rates
  5. Nordic Council of MinistersGlobal interest in the new Nordic Nutrition Recommendations – here are the speakers for the launch
  6. Nordic Council of Ministers20 June: Launch of the new Nordic Nutrition Recommendations

Stakeholders' Highlights

  1. International Sustainable Finance CentreJoin CEE Sustainable Finance Summit, 15 – 19 May 2023, high-level event for finance & business
  2. ICLEISeven actionable measures to make food procurement in Europe more sustainable
  3. World BankWorld Bank Report Highlights Role of Human Development for a Successful Green Transition in Europe
  4. Nordic Council of MinistersNordic summit to step up the fight against food loss and waste
  5. Nordic Council of MinistersThink-tank: Strengthen co-operation around tech giants’ influence in the Nordics
  6. EFBWWEFBWW calls for the EC to stop exploitation in subcontracting chains

Join EUobserver

Support quality EU news

Join us